Tuesday, 23 February 2010

The French Council of State, together with the European Court of Human Rights, is organising a series of conferences in 2010 and 2011. The first one, on 19 April of this year in Paris, will be devoted to 'the principle of subsidiarity and the European protection of human rights' with both the president of the European Court of Human Rights and the vice-president of the Council of State as speakers. Themes to be addressed in later conferences are:

- “The right of recourse, procedure andenforcement of the judgments of the EuropeanHuman Rights Court”.-“Interaction between various European law normsand cross-influence between the Court of Justice ofthe European Union and the European HumanRights Court”.- “Legal review in relation with the implementationof constitutional and treaty law norms”.- “European law applying to detention”.- “European property law”.

Those who are interested, can register at sre-colloques@conseil-etat.fr and find more information here.

Monday, 22 February 2010

The European press is reporting on Interlaken, but I must say there is not a lot on it yet. Most news media seem to limit themselves to an overview of the reforms needed rather than an analysis of the conference's outcomes. Maybe more will come in the following days (if you have links to other news media reporting, please include them in the comments). Click on the links below to see what the various media are reporting on the conference on the future of the ECHR held on Thursday and Friday last week in Switzerland:

Friday, 19 February 2010

Double news from Switzerland. First, Protocol 14 will now finally enter into force on 1 June, after yesterday's reposit - just before the start of the Interlaken Conference - by Russia of its instrument of ratification. Read the relieved press statements of the Swiss president of the Committee of Ministers, the Council of Europe's Secretary-General, and the president of the Parliamentary Assembly. Finally, the way is paved for improvements.

And today, the 'High Level Conference on the Future of the European Court of Human Rights' ended with the issuing of the Interlaken Declaration. Apart from signalling the by now well-known problems (too many applications coming in, a huge backlog of cases, and problems with full and quick implemtation of the Court's judgments), the Declaration also contains an action plan. It must be noted that the Conference and Declaration mostly served to rally political support for the much-needed changes. The real work lies in the years ahead, and it is there that the Action plan ,which contains some specific dates, will be essential.

A few points of note:

* the right of individual petition is formally re-affirmed as a "cornerstone", but it seems that in practice the Court will increasingly focus on grave, urgent and systemic violations. In addition even more effective "filtering" of cases is called for. The Conference even calls upon the Committee of Ministers to consider creating filtering mechanisms in the Court which go beyond the single judge procedure. To all effects, that will entail an increaed role for the registry. Without formally abolishing the principle that all applicatinos will be considered, the result of such a development will no doubt be that the judges of the Court will increasingly focus on truly important issues. That in itself is a development to be applauded. Let's see how it works out in practice.

* Pilot Judgments will continue to play an important role, as the Conference sees it as the main way to deal with repetitive applications. But it emphasizes that it should become clearer when and how the Court will use such judgments:. It asks the Court to apply "clear and predictable standards" - many academics, including myself in this recent online article - had called for the same.

* As expected, a lot is also justifiedly asked from the state parties themselves. This includes seconding national judges and others to the European Court, both for support and for the exchange of experience. In addition, states are explicitly asked - or they are asking each other, since this is a declaration by these very states - to take into account the Court's case law concerning other countries in order to consider changes in their own laws and policies - an erga omnes effect in practice of the judgments thus now seems to have been accepted through this declaration.

* It is envisaged that - in order to avoid the long-lasting problems with the entry into force of Protocol 14 - future reforms of the Court will be made easier either by drafting a special statute of the Court which would include many organizational matters or in other ways. Before that can happen, it seems, one would still need at least one new reform protocol...

Let's hope that this fresh breath of alpine air will indeed save the Court from possible asphyxiation - as president Costa metaphorically labelled the Court's current predicament.

Thursday, 18 February 2010

Today and tomorrow the long-awaited Interlaken conference on the future of the European human rights protection mechanism will take place in the somewhat unlikely setting of the Casino Kusaal of the small Swiss city - symbolically emphasing that one shouldn't gamble on these issues. For handy overviews of the main documents, agenda of the meeting and more news, please consult the special Interlaken Conference webpage of the Council of Europe and the special site of the organiser, the Swiss Presidency.

Tuesday, 16 February 2010

A century after its publication in 1907, the novel Les Onzes Milles Verges ("The Eleven Thousand Rods") by the French author Guillaume Apollinaire became the centre of a legal controversy which ended at the highest European level. Yesterday the European Court issued its judgment in the case of Akdaş v. Turkey. The applicant in the case was the publisher of the 1999Turkish translation of the book, an erotic novel containing graphic descriptions of sadomasochism and vampirism amongst others. He was fined under the Criminal Code and the books were seized, since the book in the view of the Turkish courts was obscene and immoral and could arouse and exploit sexual desire among the people.

Akdaş complained in Strasbourg that his freedom of expression had been violated. It may not be surprising that the Court indeed found, in a very succinct judgment, a violation of Article 10 ECHR. What is more surprising is the reasoning which the Court adopted. It reiterated its well-established jurisprudence that morals may vary according to time and place and that in principle national institutions are best placed to assess what is morally acceptable. But then it went on to observe that Apollinaire was a globally renowned author, that the novel had been published many times and in many languages, that it had first been published over a century ago (when it caused a scnadal in France itself) and had even become canonised by being included in the prestigious French literature series 'La Pléiade'. And then comes the crucial passage on the margin of appreciation in this case (para. 30): the Court "considère que la portée de cette marge d'appréciation, en d'autres termes, la reconnaissance accordée aux singularités culturelles, historiques et religieuses des pays membres du Conseil de l'Europe, ne saurait aller jusqu'à empêcher l'accès du public d'une langue donnée, en l'occurrence le turc, à une œuvre figurant dans le patrimoine littéraire européen." Loosely translated, the Court held that the margin of appreciation given to countries because of their cultural, historical and religious particularities ends when it prevents the access of the public (in their own language) to a work which is part of Europe's literary heritage! That sufficed for the Court to conclude that the Convention had been violated. The character of the penalty was only an accessory reason in the Court's argumentation. Thus, apparently, what has become part of the "canon of art" can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe's common heritage!

One may note, by the way, that the novel was banned in France itself until 1970(!) before being applauded officialy as a literary masterpiece. Indeed, not only morals may change over time...

The judgment itself is, fittingly, in French but an English-language press release can be found here.

European participation in controversial aspects of the ‘war on terror’ has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states’ extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.

Monday, 15 February 2010

The newest issue of the Human Rights Law Review (volume 10, issue 1) is out (no pun intended) and contains an article by Paul Johnson of the University of Surrey, entitled 'An Essentially Private Manifestation of Human Personality’: Constructions of Homosexuality in the European Court of Human Rights'. This is the abstract:

This article explores the continuing evolution of the European Convention on Human Rights in respect of homosexuality. In considering the Court’s case law as a mechanism through which homosexuality is discursively constructed, the article examines how this discourse both enables and constrains human rights in relation to sexual orientation in contemporary Europe. The discursive construction of homosexuality that underlies the Court’s interpretation of the Convention in respect of sexual orientation produces a problematic outcome for sexual minorities: whilst it has been instrumental in socialising a pan-European consensus on intimate and sexual privacy, the Court’s understanding of homosexuality ultimately sustains a separation between the rights associated with the private and public spheres and, in doing so, fails to address the ongoing social discrimination experienced by gay men and lesbians.

Wednesday, 10 February 2010

The campaign for parliamentary elections in the United Kingdom has, amongst many issues, led to a debate on whether the current Human Rights Act, which is based on the ECHR, should be replaced by a specific British Bill of Rights. The NGO Justice has published a report on how this affects the devoluted powers of Scotland, Wales and Northern Ireland. The report can be found here.

Tuesday, 9 February 2010

Last month, a new blog on the ECHR and France was started by Zeki Mardin, in the English language. It focuses on both new applications, pending ones, and follow-up of the European Court's judgments concerning France. The intended readership is not so much academics, but rather professionals working with law firms and NGOs. Good luck with that new resource, Zeki!

The European Court of Human Rights has become a “victim of ongoing reforms”. Continuous efforts to streamline and reinforce the system have proved inadequate in managing the challenge of its ever-increasing caseload. The consensus is that further reforms to the European Convention on Human Rights mechanisms are necessary in order to cope with the serious influx of cases from the 47 member states of the Council of Europe.

This book analyses the set of five Recommendations referred to in the 2004 Declaration of the Committee of Ministers of the Council of Europe to encourage member states to take effective domestic steps in ensuring appropriate protection of the Convention rights at the domestic level, in full conformity with the principle of subsidiarity. It also traces and evaluates the impact of the Convention in the domestic legal orders of Cyprus and Turkey and assesses, comparatively, the effective implementation of the May 2004 Recommendations in these two member states.

This book demonstrates how efforts to secure the survival and effective operation of the Court by reducing the ever increasing number of individual applications, must primarily be undertaken at national level so that the burden to comply with the Convention is carried by the member states in the first instance. The 2004 Recommendations, which address the source of the problem, are appropriate prescriptions for a healthy future and constitute a technical vehicle for implementing the Convention in the domestic legal orders of member states. These Recommendations constitute guidelines stemming directly from the Convention and are therefore invaluable in assisting member states in the pursuit to improve the protection of human rights “at home”.

Yesterday, the Russian President Dmitry Medvedev has signed the law approving Protocol 14 ECHR, reports press agency ITAR-TASS. This was the last remaining step to take before Russia formally ratifies by depositing its acceptance with the Council of Europe in Strasbourg. Protocol 14's time has finally come. Now all attention can focus on the Interlaken conference preparing essential reforms.

Thursday, 4 February 2010

Yesterday and the day before, the Spanish Presidency of the European Union and the EU's Fundamental Rights Agency organised a conference on EU accession to the ECHR. The entry into force of the European Union's Lisbon Treaty at the end of last year in combination with the upcoming entry into force of Protocol 14 ECHR will enable this accession. Accession will mean that a judge elected in respect of the EU will become part of the Court, bringing in particular expertise. Individuals will be able top bring complaints about the EU to Strasbourg after exhausting the EU's own existing system of remedies. For answers to some of the main questions concerning the issue, click here. For the speech that Council of Europe's S-G Thorbjørn Jagland delivered, see here.

Wednesday, 3 February 2010

Yesterday, the Court ruled in the case of Sinan Isik v. Turkey on the mentioning of religious affiliation on identity cards. Mr Isik was a member of the Alevi community, which is seen by some as a part of Islam and by others as a separate religion. His request to change the religion on his identity card from 'Islam' to Alevi was refused by the authorities. Only since 2006 a new legal provision allowed citizens to ask for a change of religion on their identity cards or even to have the entry left blank.

The Court reiterated that the freedom of religion (article 9 ECHR) also included a negative aspect, including the rigth not having to manifest one's religion or beliefs. The core of the issue for the Court was not so much the refusal to register the applicant as Alevi, but more broadly the very fact that he either had to indicate his religion or formally ask for the religion box to be left empty. That in itself, in the Court's view, violated the Convention. It seems from the judgment that this goes not only for identity cards, but also for civil registers.

The case is especially interesting since Turkey is a state with the notion of "laïcité" as one of its defining aspects, but the state here determined - through the legal advice of the Religious Affairs Directorate, that the Alevi faith was part of Islam.

Continuing a recent trend in its own jurisprudence, the Court indicated under Article 46 ECHR (the duty for states to abide by the Court's judgments) that the complete deletion of the 'religion box' on identity cards would be an appropriate remedy for the violation concerned.

One of the seven judges, Cabral Barreto dissented, arguing that the Court went too far and deviated from its own case-law by holding that even in a case like this, in which people were allowed to ask for a deletion of the mentioning of a particular religion without divulging what other beliefs they held, the Convention was violated. He does add that he sees no value or interest whatsoever in including religion on an identity document.

The judgment itself is in French, but a press release in English can be found here.

Monday, 1 February 2010

Just a few days before the three months deadline, Italy asked last week for referral of the case of Lautsi to the Grand Chamber of the Court. At the beginning of November last year, the Court had found that the compulsory presence of crucifixes in classrooms of public schools violated the ECHR. See my earlier comment here. Amongst others, the request for referral contends that the Chamber's judgment was in contradiction with earlier Court case-law, leaves too little margin of appreciation, and - following the reactions in many European countries - is obviously a serious issue of general importance (one of the criteria in Article 43 ECHR for referral). I think it would be very good if the Court, through the Grand Chamber, would make a new assessment of the case, since this is indeed a question with many ramifications and a very thoughtful (and maybe more pragmatic approach) is called for here.